Refusal of application for a European Union trade mark

(Article 7 and Article 42(2) EUTMR)]

Alicante, 18/08/2020

PATENT BUREAU KAITSEPURUS OÜ

Mulla 4-3

EE-10611 Tallinn

ESTONIA

Application No:	018224511
Your reference:
Trade mark:	VÄRSKA ORIGINAAL
Mark type:	Word mark
Applicant:	VERSKA MINERAALVEE osaühing VERSKA MINERAALVEE osaühing Väike-Rõsna küla EE-64001 Setomaa vald, Võru maakond EEESTONIA

The Office raised an objection on 05/05/2020 pursuant to Article 7(1)(b), (c) and (j) and Article 7(2) EUTMR because it found that the trade mark applied for is not eligible for registration, for the reasons set out in the attached letter, which forms an integral part of this decision.

Article 7(1)(j) EUTMR

The sign you have applied for is ineligible for registration under Article 7(1)(j) EUTMR, because it contains a geographical indication for non-agricultural products protected under national Estonian legislation, namely the geographical indication ‘Värska’.

The EUTM application covers Mineral water; Carbonated mineral water; Soft drinks; Fruit flavoured soft drinks, in Class 32. Therefore, this wording includes water, and drinks based on or containing water that is not of the origin indicated by the geographical indication featured in the trade mark for which protection is sought. It follows that the trade mark must be refused under Article 7(1)(j) EUTMR.

Limitation

This ground for refusal may be overcome by limiting the abovementioned goods affected by the geographical indication in Class 32 as follows:

Mineral water; Carbonated mineral water; all of them complying with the specifications of the geographical indication ‘Värska’.

Soft drinks and fruit flavoured soft drinks, based on water or containing water complying with the specifications of the geographical indication ‘Värska’.

For the sake of completeness, it should be noted that since the sign is also descriptive and devoid of any distinctive character, as specified further below, the acceptance of the suggested restriction of the goods will, in principle, not overcome the objection based under 7(1)(b) and (c) EUTMR.

Article 7(1)(b) and (c) EUTMR

The sign you have applied for is ineligible for registration under Article 7(1)(b) and (c) and Article 7(2) EUTMR, because it describes certain characteristics of the goods for which protection is sought, and it is also devoid of any distinctive character.

The assessment of descriptiveness is based on how the relevant consumer would perceive the sign in relation to the goods and services for which protection is sought. In the present case, the relevant English-speaking consumer would understand the sign as having the following meaning: original from Värska.

Värska is a village in the South-East of Estonia famous for its mineral water.

In the present case, the relevant consumers would perceive the sign as providing information that the applicant’s mineral water is original (the one and only) from Värska. Therefore, the sign describes the quality and geographical origin of the goods in question.

Lack of distinctiveness

Given that the sign has a clear descriptive meaning, it is also devoid of any distinctive character and therefore objectionable under Article 7(1)(b) EUTMR, as it is incapable of performing the essential function of a trade mark, which is to distinguish the goods or services of one undertaking from those of other undertakings.

Consequently, taken as a whole, the sign for which protection is sought is descriptive and devoid of any distinctive character, and is not capable of distinguishing the goods to which an objection has been raised within the meaning of Article 7(1)(b) and (c) and Article 7(2) EUTMR.

As above indicated, it should be noted that the grounds for refusal under Article 7(1)(b) and (c) EUTMR cannot be overcome by limiting the goods as suggested above in relation to the ground(s) for refusal under Article 7(1)(j) EUTMR.

The applicant failed to submit observations within the time limit. For the reasons set out in the letter of objection, and pursuant to Article 7(1)(b), (c) and (j) and Article 7(2) EUTMR, the application for European Union trade mark No 018 224 511 is hereby rejected for all the goods claimed.

According to Article 67 EUTMR, you have a right to appeal against this decision. According to Article 68 EUTMR, notice of appeal must be filed in writing at the Office within two months of the date of notification of this decision. It must be filed in the language of the proceedings in which the decision subject to appeal was taken. Furthermore, a written statement of the grounds of appeal must be filed within four months of the same date. The notice of appeal will be deemed to be filed only when the appeal fee of EUR 720 has been paid.

Ignacio IGLESIAS ARROYO